Cooper v. Sec'y, Case No. 8:08-CV-5-T-27MAP

• Decision Date: 01 March 2011
• Docket Number: Case No. 8:08-CV-5-T-27MAP
• Parties: TIRRANCE COOPER, Petitioner, v. SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.
• Court: U.S. District Court — Middle District of Florida

TIRRANCE COOPER, Petitioner,
v.
SECRETARY, DEPARTMENT OF CORRECTIONS, Respondent.

Case No. 8:08-CV-5-T-27MAP

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION

Dated: March 1, 2011

ORDER

Petitioner Tirrance Cooper (hereinafter "Petitioner") petitions for the writ of habeas corpus pursuant to Title 28 U.S.C. § 2254 ("petition"). (Dkt. 1).¹ Petitioner challenges his convictions for armed robbery with a firearm, nine counts of kidnapping, trespass to an occupied structure, and possession of a firearm by a convicted felon entered by the Twelfth Judicial Circuit Court in Sarasota County, Florida, in case no. 96-CF-6874. (Dkt. 1). Respondent has filed a response to the petition. (Dkt. 15). Petitioner has filed a reply to Respondent's response. (Dkt. 18). After consideration, Petitioner's petition is DENIED.

BACKGROUND

Petitioner was charged by Information with armed robbery with a firearm, nine counts of kidnapping, and burglary to an occupied dwelling. (Respondent's Ex. 2 at p. 2). An additional count of felon in possession of a firearm was severed for trial and was disposed of separately by entry of a plea. (Respondent's Ex. 1). Petitioner proceeded to jury trial and was convicted as charged on the

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robbery and kidnapping counts, and he was found guilty of the lesser offense of trespass to an occupied structure. (Respondent's Ex. 2 at p. 2). Petitioner was sentenced to concurrent life sentences as a habitual violent felony offender with minimum mandatory prison terms for use of a firearm. He received time served on the misdemeanor trespassing conviction, and a life sentence for the felon in possession of a firearm conviction. (Id.). The appellate court per curiam affirmed Petitioner's convictions and sentences. (Id.); Cooper v. State, 722 So. 2d 197 (Fla. 2d DCA 1998) [table].

On May 3, 1999, Petitioner filed a post-conviction motion pursuant to Florida Rule of Criminal Procedure 3.850 in the state circuit court. (Id.). On May 5, 1999, the circuit court denied Petitioner's post-conviction motion. (Id. at pp. 3-4). On June 30, 1999, the appellate court affirmed the denial of post-conviction relief. (Id. at p. 4); Cooper v. State, 737 So. 2d 1086 (Fla. 2d DCA 1999) [table].

On August 4, 1999, Petitioner filed a petition for the writ of habeas corpus in this Court in Case No. 8:99-cv-1832-T-24. In that petition, Petitioner raised two grounds for relief: (1) the evidence was insufficient to support the kidnapping convictions; and (2) trial counsel was ineffective in failing to argue in support of his motion for judgment of acquittal that the State failed to prove that Petitioner entered the supermarket with intent to commit or facilitate the kidnappings during the commission of the robbery. (Respondent's Ex. 3 at pp. 1-2). On June 29, 2000, this Court rejected Petitioner's claims on the merits, and denied Petitioner's federal habeas petition. (Id. at pp. 1-6).

In 2001, Petitioner filed in state court a motion to correct illegal sentence, which was denied. (Dkt. 15 at p. 3). The appellate court affirmed in part and reversed in part, holding that the judgment assessing enhanced life sentences for armed robbery and kidnapping was affirmed. (Respondent's

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Ex. 4); Cooper v. State, 800 So. 2d 243 (Fla. 2d DCA 2001). The appellate court, however, remanded for further proceedings on the habitualized kidnapping counts, and also held that the habitual violent felony offender life sentence on the second-degree felony of possession of a firearm by a convicted felon was illegal. (Id.). On April 1, 2002, the state circuit court resentenced Petitioner on the felon in possession of a firearm conviction to 30 years imprisonment as a habitual violent felony offender. (Respondent's Exs. 5, 6).

On September 10, 2003, Petitioner filed a Rule 3.850 motion for post-conviction relief (Respondent's Ex. 7). The state court denied the Rule 3.850 motion on September 19, 2003 (Respondent's Ex. 8). On August 13, 2004, the appellate court affirmed the denial of four of the claims, but remanded for resentencing on the kidnapping counts. (Respondent's Ex. 9); Cooper v. State, 884 So. 2d 286 (Fla. 2d DCA 2004). Petitioner was resentenced to concurrent 215 months imprisonment on each of the kidnapping counts. (Respondent's Ex. 10). On August 30, 2006, the appellate court per curiam affirmed Petitioner's resentencing judgment. (Respondent's Ex. 11); Cooper v. State, 937 So. 2d 130 (Fla. 2d DCA 2006) [table].

On January 22, 2007, Petitioner filed another Rule 3.850 motion. (Respondent's Ex. 13). The state court denied the motion on January 29, 2007. (Id.). On May 16, 2007, the appellate court per curiam affirmed, with citations, the denial of the Rule 3.850 motion. (Respondent's Ex. 15); Cooper v. State, 958 So. 2d 929 (Fla. 2d DCA 2007) [table].

Petitioner constructively filed his federal habeas petition in this Court on December 31, 2007. (Dkt. 1).² In his petition, Petitioner raises three grounds for relief:

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Ground One: Petitioner's nolo contendere plea to the possession of a firearm by a convicted felon charge was involuntary because he was not sentenced to 15 years in prison in accordance with his plea agreement.

Ground Two: There was insufficient evidence to support the armed kidnapping convictions.

Ground Three: The State failed to provide him with adequate notice of its intent to seek an enhanced sentence as a violent habitual felony offender.

STANDARD OF REVIEW

Under 28 U.S.C. § 2254(d) and (e) as amended by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this Court's review of the state court's factual findings must be highly deferential. Such findings are presumed to be correct unless rebutted by clear and convincing evidence. Similarly, the state courts' resolutions of issues of law, including constitutional issues, must be accepted unless they are found to be "contrary to" clearly established precedent of the Supreme Court of the United States or involved an "unreasonable application" of such precedent. Williams v. Taylor, 529 U.S. 362, 386 (2000). It is not enough that the federal courts believe that the state court was wrong; the state court decision must have been "objectively unreasonable." Id.; Breedlove v. Moore, 279 F.3d 952 (11th Cir. 2002).

Procedural Default

A § 2254 application cannot be granted unless a petitioner "has exhausted the remedies available in the courts of the State;..." 28 U.S.C. 2254(b)(1)(A); Snowden v. Singletary, 135 F.3d 732, 735 (11th Cir. 1998). In other words, the state prisoner must give the state courts an opportunity to act on his claims before he presents those claims to a federal court in a habeas petition. O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). See also, Henderson v. Campbell, 353 F.3d 880, 891 (11th Cir. 2003)("A state prisoner seeking federal habeas relief cannot raise a federal

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constitutional claim in federal court unless he first properly raised the issue in the state courts. ")(quoting Judd v. Haley, 250 F.3d 1308, 1313 (11th Cir. 2001)); Duncan v. Henry, 513 U.S. 364 (1995)("[EJxhaustion of state remedies requires that the state prisoner 'fairly present' federal claims to the state courts in order to give the State the 'opportunity to pass upon and correct alleged violations of its prisoners' federal rights[.]"') (citation omitted).

Under the procedural default doctrine, "if the petitioner has failed to exhaust state remedies that are no longer available, that failure is a procedural default which will bar federal habeas relief, unless either the cause and prejudice or the fundamental miscarriage of justice exception is applicable." Smith v. Jones, 256 F.3d 1135, 1138 (11th Cir. 2001). "The doctrine of procedural default was developed as a means of ensuring that federal habeas petitioners first seek relief in accordance with established state procedures." Henderson, 353 F.3d at 891 (quoting Judd v. Haley, 250F.3dat 1313).

Pre-AEDPA decisions from the Supreme Court establish the framework governing procedural default in federal habeas cases. A procedural default will only be excused in two narrow circumstances. First, petitioner may obtain federal habeas review of a procedurally defaulted claim if he shows both "cause" for the default and actual "prejudice" resulting from the default. "Cause" ordinarily requires petitioner to demonstrate that some objective factor external to the defense impeded the effort to raise the claim properly in the state court. Henderson, 353 F.3d at 892; Marek v. Singletary, 62 F.3d 1295, 1302 (11th Cir. 1995).

To show "prejudice, " the petitioner must show "not merely that the errors at his trial created a possibility of prejudice, but that they worked to his factual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions." Hollis v. Davis, 941 F.2d 1471, 1480 (11th

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Cir. 1991) (quoting United States v. Frady, 456 U.S. 152, 170 (1982)). The petitioner must show that there is at least a reasonable probability that the result of the proceeding would have been different. Henderson, 353 F.3d at 892.

Second, a petitioner may obtain federal habeas review of a procedurally defaulted claim, without a showing of cause or prejudice, if such...